Plaintiffs
Gonzalez and Barba allege that Allied violated certain
provisions of the Fair Debt Collection Practices Act, 15
U.S.C. § 1692 et seq. (“FDCPA”), by
engaging in unfair practices to collect on a mutual family
member's debt to various medical providers
(“Debt”). The family member is Gonzalez's
husband and Barba's son, Jaime Retiguin. Plaintiff Barba
shares the name “Jaime Retiguin” with his son.
The Court refers to Plaintiff Barba as “Barba”
and to his son as “Retiguin.”

Allied,
apparently acting as a debt collection agent for the medical
providers, obtained a judgment (“Judgment”) in a
state-court proceeding (“Debt Action”) against
Retiguin in the amount of $5, 101.24 plus costs and interest
of $208.10 on June 2, 2016. Allied obtained a writ of
execution naming “Jaime Retiguin” as the
garnishee on June 22, 2016. Possibly due to Retiguin and
Barba's shared names, Barba's bank account was
garnished $4, 448.31 instead of Retiguin's. Barba
notified Allied of the mistake, and Allied reimbursed the
funds except for a bank fee and garnishment fee.

Allied
obtained a writ of execution naming Gonzalez as the garnishee
on September 1, 2016. The writ of execution included the full
amount of the Judgment and required Gonzalez to contribute
12.5% of her income-the amount of her income that constituted
community property between her and Retiguin-to the
Debt.[2]

Plaintiffs
allege that it was unlawful for Allied to seek a writ of
execution against Gonzalez on September 1, 2016, because
Allied had already received payment for the Debt at that
point. According to Plaintiffs, Allied received payment for
the Debt from Retiguin's health insurance and from the
Victims of Crime program between July 21, 2016, and October
13, 2016.

Allied
disputes that it received payments prior to seeking a writ of
execution against Gonzalez on two grounds. First, Allied
contends that payments were issued to the medical providers
directly, not Allied. (ECF No. 15 at 16 (citing ECF No. 15-5
at 12).) Second, Allied essentially contends no medical
provider received payment until September 7, 2016. (See
Id. at 17.) Gonzalez alleged in the Debt Action that one
of the medical providers received a check on August 9, 2016,
from the California Ironworkers Field Welfare Benefit Plan
that was approved on July 21, 2016, but Allied contends that
the payment was invalid because it was reversed on September
7, 2016, and replaced with a new check from Anthem BCBS.
(Id. (citing ECF No. 15-5 at 12).)

Gonzalez
filed a motion requesting the court exclude her from
Allied's garnishment on October 3, 2016. Gonzalez also
allegedly notified the court that she was not responsible for
the Debt and that the Debt was paid. Gonzalez was released
from garnishment by court order in the Debt Action on
November 23, 2016. The minutes from the hearing state the
following:

Garnishee Defendant's Counsel asserts the Garnishee
Defendant [Gonzalez] was unsure what the debt was in regards
to this signed confession of judgment. Counsel states they
believe it was from medical bills, which they believed was
paid by insurance or will be paid by victim of crimes [sic].

Plaintiff's Counsel asserts in the supplement the
Garnishee Defendant filed, they acknowledged it was community
debt. Counsel states they are willing to release the
garnishment as to the Garnishee Defendant.

Court ORDERS the Claim of Exemption from Execution is GRANTED
as [to] the Garnishee Defendant ONLY.

A court
may dismiss a plaintiff's complaint for “failure to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). A properly pleaded complaint must
provide “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not
require detailed factual allegations, it demands more than
“labels and conclusions” or a “formulaic
recitation of the elements of a cause of action.”
Ashcroft v. Iqbal,556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555). “Factual
allegations must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at
555. Thus, to survive a motion to dismiss, a complaint must
contain sufficient factual matter to “state a claim to
relief that is plausible on its face.” Id. at
570.

In
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, a district court must accept as
true all well-pleaded factual allegations-but not legal
conclusions-in the complaint. Id. at 678. Mere
recitals of the elements of a cause of action, supported only
by conclusory statements, do not suffice. Id.
Second, a district court must consider whether the factual
allegations in the complaint allege a plausible claim for
relief. Id. at 679. A claim is facially plausible
when the plaintiffs complaint alleges facts that allow a
court to draw a reasonable inference that the defendant is
liable for the alleged misconduct. Id. at 678. Where
the complaint does not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but has not shown-that the pleader is entitled to
relief. Id. at 679. When the claims in a complaint
have not crossed the line from conceivable to plausible, the
complaint must be dismissed. Twombly, 550 U.S. at
570.

IV.
DISCUSSION

Allied
argues (A) that several allegations in Plaintiffs' FAC
are barred by the doctrines of judicial estoppel or issue
preclusion, (B) that Plaintiff Barba is not a consumer within
the meaning of 15 U.S.C. § 1692a(3), (C) that Allied did
not violate 15 U.S.C. § 1692e(5), (D) that Allied did
not violate 15 U.S.C. § 1692e(1 0), and (E) that Allied
did not violate 15 U.S.C. § 1692f. (ECF No. 15 at
11-27.) The Court will address Allied's arguments in that
order.

A.
Judicial Estoppel and Issue Preclusion

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&ldquo;Judicial
estoppel is an equitable doctrine that precludes a party from
gaining an advantage by asserting one position, and then
later seeking an advantage by taking a clearly inconsistent
position.&rdquo; Hamilton v. State Farm Fire & Cas.
Co., 270 F.3d 778, 782 (9th Cir. 2001). &ldquo;Judicial
estoppel requires that a party took a &lsquo;clearly
inconsistent&#39; position in a prior proceeding, that the
party persuaded that prior court of that position, and that
the party seeking to later assert an inconsistent position
would &lsquo;derive unfair advantage&#39; over the opposing
party.&rdquo; Neeman v. Bank of N.Y. Mellon, No.
2:16-cv-02674-APG-PAL, 2017 WL 3484995, at *2 (D. Nev. Aug.
14, 2017) (citing Kobold v. Good Samaritan Reg&#39;l Med.
Ctr., 832 F.3d 1024, 1045 (9th Cir. 2016)). These
factors are not ...

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